New York State Court of Claims

New York State Court of Claims

CLAPP v. THE STATE OF NEW YORK, #2004-028-515, Claim No. 107042, Motion Nos. M-66860, CM-67123, CM-67150


Synopsis


Case Information

UID:
2004-028-515
Claimant(s):
In the Matter of the Claim of PETER CLAPP and ELIZABETH CLAPP
Claimant short name:
CLAPP
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107042
Motion number(s):
M-66860
Cross-motion number(s):
CM-67123, CM-67150
Judge:
RICHARD E. SISE
Claimant's attorney:
Attorneys for CLAPP
CHERUNDOLO, BOTTAR & LEONE, P.C.
BY: John C. Cherundolo, Esq. and
Michael W. Schell, Esq.

Attorney for PELTON
S. ROBERT WILLIAMS, ESQ.

Attorney for FITZGERALD
PETRONE & PETRONE, P.C.
BY: John R. Petrone, II, Esq.

Attorneys for BRADFORD
SASSONE LAW OFFICE
BY: Robert J. Sassone, Esq.

Attorneys for McNEIL
BRINDISI, MURAD & BRINDISI PEARLMAN, LLP
BY: Eva Brindisi Pearlman, Esq. and
Stephanie A. Palmer, Esq.

Attorneys for COUCHMAN
BRINDISI, MURAD & BRINDISI PEARLMAN, LLP
BY: Eva Brindisi Pearlman, Esq. and Stephanie A. Palmer, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: PHELAN, BURKE & SCOLAMIERO, LLPBY: Kevin P. Burke, Esq., Terese Burke Wolff, Esq. And Timothy S. Brennan, Esq.
Third-party defendant's attorney:

Signature date:
April 5, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2004-028-518, 2004-028-519, 2004-028-520, 2004-028-521, 2004-028-522


Decision
Claimants[1]
have each brought Claims seeking damages for injuries (including one death) sustained on October 10, 2002 when a pedestrian bridge, owned by the State of New York, collapsed while under construction. The Claimants seek partial summary judgment on certain of their Labor Law claims and the Defendant opposes the motions and has cross-moved for summary judgment dismissing certain of the Labor Law claims.
Claimant Clapp has also cross-moved for permission to amend his Claim with regard to his Labor Law §241(6) claim and Defendant has opposed that application.


FACTS COMMON TO ALL CLAIMS:

On October 10, 2002 construction was proceeding on the Marcy pedestrian bridge, part of a larger project involving construction of the Utica-Rome Expressway in Oneida County, New York. The pedestrian bridge, owned by the Defendant, had a span of 170 feet and was being erected in excess of 20 feet above the road surface. The span was to be constructed of a three sided steel tub with the fourth side or top of the tub being comprised of the poured concrete deck. When finished the assembly would resemble a trapezoid. Workers on site that day included employees of New York State and of Tioga Construction Company (Tioga). Claimants in these actions were employed by Tioga. On that day, crews were pouring concrete for the bridge deck. A crane was being used to hoist the concrete to the bridge deck for the pour. At the time of the accident, the crane had been repositioned to begin pouring the south side of the bridge deck as the north half of the deck had been poured. The bucket was on the ground being filled with concrete. Each of the Claimants were working on the construction of the pedestrian bridge at the time it buckled, twisted and collapsed to the ground.

FACTS REGARDING SPECIFIC CLAIMS:
COUCHMAN Claim No. 107232
Claimant's Decedent Scott Couchman was employed by Tioga and was the operator of the screed or concrete finishing machine, a Gomarco C450, at the time of the accident.

FITZGERALD Claim No. 107115
Garrett Fitzgerald, a 13 year employee of Tioga Construction Company, was a Carpenter Foreman on the pedestrian bridge project. Fitzgerald's experience included work on over 150 bridges and participation in seminars and classes on bridge construction. Fitzgerald oversaw the forming of the concrete top deck. He gave hand signals to the crane operator to guide placement of the hoist and when to drop the concrete. At the time of the accident, Fitzgerald was standing on reinforcement bars (rebar) in an area where concrete had not yet been poured, approximately 10 feet in front of the concrete finishing machine. Ted Fox[2]
, the New York State Inspector was standing approximately 10 feet from Fitzgerald. The bucket used to hoist the concrete was on the ground being filled when Fitzgerald felt off balance. As he looked to the south he saw the rebar twisting and as he tried to run he slid and was thrown off the bridge to the pavement below. He was pinned beneath the rubble which included the rebar and steel and wood form work.
PELTON Claim No. 107111
Garret Pelton was employed by Tioga and was working on the bridge at the time of its collapse. Pelton was involved in the concrete pour and was on the bridge deck. He suffered traumatic brain injuries and is unable to speak.

CLAPP Claim No. 107042
Peter Clapp was employed as a construction worker by Tioga and was working on the bridge deck during the concrete pour.

BRADFORD Claim No. 107144
Michael D. Bradford was working as a carpenter/laborer for Tioga on the pedestrian bridge at the time of its collapse. He fell approximately 20 feet to the ground and had his lower extremities buried beneath the debris. At the time of the collapse, Bradford was working approximately 5 feet in front of the concrete finishing machine, raking the concrete.

McNEIL Claim No. 107231
Frederick T. McNeil had been employed by Tioga for six months at the time of the bridge collapse. On that day, McNeil, a pipe layer by trade, was standing on the top of the bridge deck grading the concrete. When the span collapsed, McNeil held onto the deck, falling feet first to the ground.

LAW
Labor Law § 240, known as the "Scaffold Law," provides in pertinent part as follows:
All contractors and owners and their agents,... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.Labor Law § 240(1).


It is the responsibility of the owner and general contractor, not of the worker, to insure the proper placement and use of the safety devices (see Rich v State of New York, 231 AD2d 942). This statute is to be liberally construed to accomplish its purpose of affording protection to workers (Melber v 6333 Main St., 91 NY2d 759, 762), however, caution must nevertheless be exercised not to stretch the statute's reach beyond that intended by the Legislature (Perchinsky v State of New York, 232 AD2d 34, 37-38 lv dismissed in part, lv denied in part 91 NY2d 830, lv denied 93 NY2d 812). It is not the law "that a fall from a scaffold or ladder, in and of itself, results in an award of damages to the injured party" (Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280). Both a falling worker and a falling object may come within the ambit of Labor Law § 240(1) (see Narducci v Manhasset Bay Assocs., 96 NY2d 259, 267). Hence, to come within the protection afforded by the statute, an injured worker generally must show, at a minimum, that a relevant safety device was absent or defective and that such absence or defect was a proximate cause of a gravity-related injury (see Narducci v Manhasset Bay Assocs., supra at 267-268; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494).
Thus, in order to prevail on a summary judgment motion seeking a determination of liability on the part of an owner a claimant must show that Labor Law § 240 (1) was violated and that the violation was a proximate cause of the claimant's injury (
Gordon v Eastern Ry. Supply, 82 NY2d 555; Zimmer v Chemung County Performing Arts, 65 NY2d 513). A violation of the statute may be demonstrated by the failure of the owner or contractor to provide a necessary safety device required to give the worker proper protection (Bland v Manocherian, 66 NY2d 452) or in situations where a safety device was provided by proof that the particular device furnished collapsed, slipped or otherwise failed to perform its function of supporting the worker (see Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280). Ever since its decision in Koenig v Patrick Constr. Corp., 298 NY 313, 316-317, the Court of Appeals has steadfastly held that contributory negligence is not a defense which will exonerate a defendant who has violated the statute and proximately caused a plaintiff's injury (see e.g. Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521; Stolt v General Foods Corp., 81 NY2d 918).
A work site is "elevated" and safety devices are required for purposes of the statute where the work to be performed involves a differential in elevation between the work site and a lower level "such that one of the devices enumerated in the statute will safely allow the worker to perform the task" (
D'Egidio v Frontier Ins. Co., 270 AD2d 763, 765; LaJeunesse v Feinman, 218 AD2d 827). In the case at bar, the Defendant does not suggest, as it would strain credulity, that the pedestrian bridge was other than an elevated work site or that its collapse was "the type of peril a construction worker usually encounters on the job site" (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491).
Claimants, whom the Court finds were engaged in Labor Law § 240 work, have put forth evidence both that temporary bracing or shoring was required but not provided in order to stabilize and support the pedestrian bridge during the pouring of the concrete (
see Misseritti v Mark IV Constr. Co., 86 NY2d 487 [§240[1] braces are those used to support elevated work sites not braces designed to shore up or lend support to a completed structure]) and that the pedestrian bridge collapsed due to design defects that precluded the structure from supporting the loads during various stages of construction (Alterman Affidavit ¶¶20-23). Claimants' engineer averred that the bridge was incomplete because the concrete decking, which would become the fourth side of the tub girder, was not cured and therefore the incomplete bridge had limited structural capacity to resist temporary construction loads (id. ¶13). Whether viewed as the failure to provide an enumerated safety device, i.e. the shoring or bracing, or as the complete failure of the safety device[3], Claimants have made a prima facie showing of entitlement to summary judgment and the burden shifts to the Defendant to submit evidence sufficient to raise a triable issue of fact (Klein v City of New York, 222 AD2d 351, affd 89 NY2d 833).
Defendant's initial opposition to the motions is based upon the purported need for additional discovery into the reasons for the collapse of the pedestrian bridge and the extent, use and availability of safety devices. However, none of the purported theories for the collapse advanced by the Defendant rise to the level of an absolute defense to a Labor Law §240 claim (
see Koenig v Patrick Constr. Corp., 298 NY 313, supra; see footnote 4, infra) and the availability of safety equipment is of no moment in avoiding liability (Ferra v County of Wayne, 147 AD2d 964). Under the circumstances and the posture of these Claims, the Court would expect the Defendant to offer more than mere assertions in support of its purported need for discovery. As such, Defendant can not satisfy its burden that further discovery may lead to relevant evidence in these claims (see Auerbach v Bennett, 47 NY2d 619; Ruttura & Sons Constr., v Petrocelli Constr., 257 AD2d 614.)
A defendant may defeat summary judgment only if there is a plausible view of the evidence -- enough to raise a fact question -- that there was no statutory violation and that claimant's own acts or omissions were the sole cause of the accident (
Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, footnote 8, citing Klein v City of New York (89 NY2d 833, 835). If defendant's assertions in response fail to raise a fact question as to these issues, the claimant must be accorded summary judgment (id.) Put another way, "mere speculation by the State that the accident may have occurred in a different manner is not sufficient to raise an issue of fact (Rich v State of New York, 231 AD2d 942, 943). While the State has offered many possible theories for the pedestrian bridge collapse, there is no plausible view of the evidence which would suggest any of the Claimants'[4] conduct was the sole proximate cause of their injuries. Similarly unavailing is Defendant's contention that bracing or shoring (an enumerated safety device) to support the pedestrian bridge may have been present based upon its expert's observation that "I saw timber which could have been used as shoring" (Gailor Affidavit ¶ 13). Assuming arguendo such shoring was in place, it is clear by the pedestrian bridge collapse that it was not "so constructed [or] placed... as to give proper protection to a person so employed" (Labor Law § 240[1]). These Claimants were injured because of the failure of or lack of safety devices to protect them from a fall from their elevated work stations. The specific reason for or the precise mechanics of the bridge collapse may play a role in how liability may be assessed among the entities responsible for the design and construction of the ill-fated pedestrian bridge. Those answers are, on the facts presented, of no consequence to Claimants' actions against the owner pursuant to Labor Law §240 (1). Accordingly, Defendant has failed to raise a material question of fact to preclude a grant of summary judgment to Claimants.
Defendant's most compelling argument against Claimant's § 240(1) cause of action is a legal one, premised on the notion that the pedestrian bridge as embodied in its previously poured abutments (
see Burke Affidavit, footnote 3) was a permanent structure and that a permanent structure can not constitute the functional equivalent of a scaffold. In making this argument, Defendant relies in part upon Dombrowski v Schwartz, 217 AD2d 914 and Monroe v New York State Elec. & Gas Corp., 186 AD2d 1019, two Fourth Department cases in which the Appellate Division held that the stairways upon which the plaintiffs were injured were not the functional equivalent of a ladder or other statutorily enumerated safety device. In each case, the Court highlighted the fact that the at issue stairways were complete and permanent (see Dombrowski, supra 217 AD2d at 914 and Monroe, supra, 186 AD2d at 1019).[5]
§ 240(1) applicable]; D'Egidio v Frontier Ins. Co., 270 AD2d 763 (working on permanent floor § 240(1) inapplicable];)

Claimants assert, without contradiction, that the pedestrian bridge was not complete at the time of its collapse, pointing to,
iter alia, the design documents which required the concrete deck to complete the tub girder assembly (see Alterman Affidavit ¶ 13) and that as such the pedestrian bridge was not a permanent or completed structure at the time of this accident. Claimants rely on cases outside of the Fourth Department which hold that the use of permanent structures as an enumerated safety device can fall within the protections of Labor Law § 240 (see e.g. Richardson v Matarese, 206 AD2d 353; Carpio v Tishman Constr. Corp., 240 AD2d 234). As the Defendant correctly notes, the Fourth Department has not embraced these holdings. However, in Keefe v E & D Specialty Stands, Inc., 259 AD2d 994 the Fourth Department granted a plaintiff summary judgment holding that bleachers which were under construction were being used as a temporary stairway, or the functional equivalent of a ladder and that Supreme Court erred in likening the bleachers to a permanent stairway (id.). The Appellate Division by noting that the bleachers were partially constructed distinguished that action from Dombrowski (id.).
This Court is of the view that the critical distinction in determining the applicability of Labor Law § 240 to the instant facts is not whether the structure is intended to be permanent, as the Defendant argues, but rather, whether the structure that is being used as the functional equivalent of an enumerated safety device is completed at the time of the accident. By viewing the issue in this fashion, the Court believes the Fourth Department's holdings in
Dombrowski, Monroe and Keefe are reconciled. Under this analysis, the pedestrian bridge, which the Court finds was clearly not completed for its intended purpose, was being used as the functional equivalent of a scaffold and as such falls within the ambit of Labor Law §240 as "an elevated workplace which posed substantial risks of gravity related injury and was thus mandated to have such safety devices as would provide proper protection to the workers" (Fox v Tioga Construction Company, 1 Misc 3d 261, 269).
Based upon the foregoing, Claimants have established their entitlement to partial summary judgment on the issue of liability on their Labor Law § 240(1) claims and the Clerk of the Court is directed to enter interlocutory judgments accordingly. Defendant's cross-motions for summary judgment dismissing Claimants' Labor Law §240(1) claims are denied.

The parties' remaining motions, including Claimant Clapp's cross-motion to amend his claim, are denied as moot.



April 5, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims



The Court considered the following papers
:

Couchman M-66841/CM-67120

Notice of Motion and Supporting Affidavit of Eva BrindisiPearlman, Esq., filed May 21, 2003 with annexed Exhibits A-E

Supporting Affidavit of Philip J. Alterman, filed May 21, 2003 with annexed Exhibit A


Supporting Affidavit of Deborah L. Couchman filed May 21, 2003 with annexed Exhibits A-E

Claimant's Memorandum of Law


Notice of Cross Motion and Affidavit in Support/Opposition of Kevin P. Burke, Esq., filed July 21, 2003 with annexed Exhibits A-N


Affidavit in Support/Opposition of Ernie Gailor (annexed as Exhibit B)

Affidavit in Support/Opposition of Uriel M. Oko (annexed as Exhibit C)

Defendant's Memorandum of Law

Affidavit of Stephanie A. Palmer, Esq., filed July 25, 2003

Affidavit of Eugene DiBartolomeo, filed July 25, 2003 with

annexed attachment


Claimant's Reply Memorandum of Law

Reply Affidavit of Kevin P. Burke, Esq., filed August 4, 2003

Defendant's Reply Memorandum of Law

Fitzgerald M-66838/CM-67118

Notice of Motion and Supporting Affidavit of John R. Petrone, II, Esq., filed May 19, 2003 with annexed Exhibits A-G

Supporting Affidavit of Philip J. Alterman, filed May 19, 2003 with annexed Exhibit A


Supporting Affidavit of Garrett Fitzgerald, filed May 19, 2003

Claimant's Memorandum of Law

Notice of Cross Motion and Affidavit in Support/Opposition of Kevin P. Burke, Esq.,

filed July 21, 2003 with annexed Exhibits A-N


Affidavit in Support/Opposition of Ernie Gailor (annexed as Exhibit B)

Affidavit in Support/Opposition of Uriel M. Oko (annexed as Exhibit C)

Defendant's Memorandum of Law

Affirmation in Opposition/Support of John R. Petrone, II, Esq.,

filed July 24, 2003


Supplemental Affirmation of John R. Petrone, II, Esq., with annexed Exhibit A (Affidavit of Eugene DiBartolomeo) filed July 25, 2003


Reply Affidavit of Kevin P. Burke, Esq., filed August 4, 2003

Defendant's Reply Memorandum of Law


PELTON M-66881/CM-67121

Notice of Motion and Supporting Affidavit of S. Robert Williams, Esq., filed May 29, 2003 with annexed Exhibits A-O

Supporting Affidavit of Philip J. Alterman, filed May 29, 2003 with annexed Exhibit A

Supporting Affidavit of Darlene S. Pelton, filed May 29, 2003 with annexed Exhibits A-B

Claimant's Memorandum of Law

Notice of Cross Motion and Affidavit in Support/Opposition of Kevin P. Burke, Esq.,

filed July 21, 2003 with annexed Exhibits A-N


Affidavit in Support/Opposition of Ernie Gailor (annexed as Exhibit B)

Affidavit in Support/Opposition of Uriel M. Oko (annexed as Exhibit C)

Defendant's Memorandum of Law

Affidavit in Opposition/Support of S. Robert Williams, Esq.,

filed July 25, 2003

Claimant's Reply Memorandum of Law

Reply Affidavit of Kevin P. Burke, Esq., filed August 4, 2003

Defendant's Reply Memorandum of Law

CLAPP M-66860/CM-67123/CM-67150

Notice of Motion and Supporting Affidavit of John C. Cherundolo, Esq., filed May 27, 2003 with annexed Exhibits A-O

Supporting Affidavit of Philip J. Alterman (annexed as Exhibit N)

Supporting Affidavit of Peter Clapp (annexed as Exhibit L)

Claimant's Memorandum of Law[6]


Notice of Cross Motion and Affidavit in Support/Opposition of Kevin P. Burke, Esq., filed July 21, 2003 with annexed Exhibits A-O

Affidavit in Support/Opposition of Ernie Gailor (annexed as Exhibit B)

Affidavit in Support/Opposition of Uriel M. Oko (annexed as Exhibit C)

Defendant's Memorandum of Law

Notice of Cross Motion and Affidavit in Support/Opposition of John C. Cherundolo, Esq.,

filed July 25, 2003 with annexed Exhibits A-C


Affidavit of Eugene DiBartolomeo filed July 25, 2003

(annexed as Exhibit C)

Claimant's Memorandum of Law in Support/Opposition

Reply Affidavit of Kevin P. Burke, Esq., filed August 4, 2003

Defendant's Reply Memorandum of Law

McNEIL
M-66842/CM-67117

Notice of Motion and Supporting Affidavit of Eva Brindisi Pearlman, Esq., filed May 21, 2003 with annexed Exhibits A-E
Supporting Affidavit of Philip J. Alterman, filed May 21, 2003 with annexed Exhibit A


Supporting Affidavit of Frederick T. McNeil, filed May 21, 2003 with annexed Exhibits A-D

Claimant's Memorandum of Law

Notice of Cross Motion and Affidavit in Support/Opposition of Kevin P. Burke, Esq.,

filed July 21, 2003 with annexed Exhibits A-N


Affidavit in Support/Opposition of Ernie Gailor (annexed as Exhibit B)

Affidavit in Support/Opposition of Uriel M. Oko (annexed as Exhibit C)

Defendant's Memorandum of Law

Affidavit in Opposition/Support of Stephanie A. Palmer, Esq.,

filed July 25, 2003


Affidavit of Eugene DiBartolomeo, filed July 25, 2003[7]

Reply Affidavit of Kevin P. Burke, Esq., filed August 4, 2003

Defendant's Reply Memorandum of Law

Claimant's Reply Memorandum of Law

BRADFORD
M-66923, CM-67115

Notice of Motion and Supporting Affidavit of Robert J. Sassone, Esq., filed June 6, 2003 with annexed Exhibits A-J

Supporting Affidavit of Philip J. Alterman, filed June 6, 2003 with annexed Exhibit A


Supporting Affidavit of Michael D. Bradford, filed June 6, 2003

Claimant's Memorandum of Law

Notice of Cross Motion and Affidavit in Support/Opposition of Kevin P. Burke, Esq.,

filed July 21, 2003 with annexed Exhibits A-N

Affidavit in Support/Opposition of Ernie Gailor (annexed as Exhibit B)

Affidavit in Support/Opposition of Uriel M. Oko (annexed as Exhibit C)

Defendant's Memorandum of Law

Affidavit in Opposition/Support of Robert J. Sassone, Esq.,

filed July 25, 2003 with annexed Exhibit A


Affidavit of Eugene DiBartolomeo, filed July 25, 2003[8]

Reply Affidavit of Kevin P. Burke, Esq., filed August 4, 2003

Defendant's Reply Memorandum of Law

Claimant's Reply Memorandum of Law


[1] Claimants shall refer to either the injured workers or the decedent, as appropriate and does not include the spouses who have brought derivative claims.
[2] Theodore Fox is the plaintiff in an action in Oneida County Supreme Court and has been granted summary judgment on his Labor Law 240(1) claim (Fox v Tioga Construction Company, 1 Misc 3d 261.
[3] In this regard, Claimants would be aided by the presumption that the scaffolding device, i.e. the pedestrian bridge itself was not good enough to afford proper protection (see Panek v County of Albany, 99 NY2d 452, 458, [summary judgment appropriate for the plaintiff where it was uncontroverted that a ladder collapsed beneath him, causing the fall]).
[4] The only Claimant whose conduct has been suggested as the sole proximate cause of the bridge collapse is that of Couchman, who was operating the concrete finishing machine (see Gailor Affidavit ¶¶ 21-25). This assertion is undermined by Defendant's other expert who offers that a lateral impact may have caused the finishing machine to jump its track (see Oko Affidavit ¶ 12) or by oscillations created by the operation of the machine (id. ¶¶16, 17).

[5]The Third Department cases also relied upon by Defendant for this same proposition distinguished between permanent and temporary flooring (Craft v Clark Trading Corp., 257 AD2d 886, 888 [temporary flooring

[6] Notwithstanding Defendant's argument with regard to the timeliness of the submission of Claimant's Memorandum of Law, the Court has exercised its discretion to consider same.
[7] Although referenced as an exhibit, the affiant's curriculum vitae was not attached. It was however attached as an exhibit to the identical affidavit submitted on behalf of Claimant Couchman.
[8] Although referenced as an exhibit, the affiant's curriculum vitae was not attached. It was however attached as an exhibit to the identical affidavit submitted on behalf of Claimant Couchman.